Comcover presentation summary
Michael Tehan, Minter Ellison – 23 October 2013
Michael's presentation addresses the different approaches to employment and IR matters taken by the Federal
Court of Australia and the Fair Work Commission. Similarities are acknowledged: for example, tribunal
members are required to act judicially and afford parties procedural fairness in the same way as judges.
However, Michael will argue that the differences are greater than the similarities. Michael believes that being
aware of the different considerations which apply in the Courts and the Commission is key to successful
litigation in both forums.
A recurring theme throughout the presentation is the distinction between the black letter law as it appears in
the statute books and reported cases, on the one hand, and industrial lore, on the other hand. Decisions of the
Commission exert a particularly strong normative influence on work practices and what is considered to be
acceptable workplace behaviour. A great deal of this takes place behind closed doors in private arbitration
proceedings. The resolution of local grievances over time guides parties' conduct. In this way, industrial
parties are always acting and bargaining in the shadow of the law - what would happen if we took it to Court,
or to the Commission?
Michael refers to five recent cases to illustrate the differences between the Federal Court and the Commission.
Shea v TruEnergy and Robinson v Goodman are used to illustrate the impact of the rules of evidence. Whereas
the Fair Work Act 2009 specifically provides that the rules of evidence do not apply to the Commission, the
courts are hypersensitive to attempts to adduce irrelevant or scandalous evidence. Strict rules of evidence
apply to ensure that only relevant and reliable evidence is admitted. In contrast, the Commission admits a
great deal of material, leaving it to tribunal members to give it 'the weight it deserves'.
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Next, the controversial pornography-related unfair dismissal case of B, C & D v Australia Post is used to
exemplify the narrow grounds on which Full Bench decisions can be challenged in the Federal Court. Michael
explains that there is no automatic appeal from Full Bench decisions; they need judicial review on the grounds
of jurisdictional error. Failing to appreciate the lasting impact of Full Bench decisions, Michael argues, leads
parties who are unfamiliar with the relevant principles to take a complacent approach to tribunal litigation.
The risk of not running a case in the Commission well is being stuck with an unhelpful precedent.
Lastly, the cases of Linfox v Stutsel and Commonwealth Bank v Barker are juxtaposed to highlight the
fundamental point that whilst fairness is everything in the unfair dismissal jurisdiction, but it is irrelevant in the
realm of contract. Michael poses the question whether possible High Court recognition of the implied term of
mutual trust and confidence will bring about a surge in common law claims and a convergence in relevant legal
principles. The colonisation of contract law by notions of fairness will inevitably make such claims more
accessible and attractive.
Michael concludes by reiterating the importance of selecting which cases to run (or defend) and which cases to
settle. One cannot know the difference, Michael says, without knowing both the law and the lore of workplace
relations.
PRESENTATION SUMMARY –23 OCTOBER 2013
MINTER ELLISON | COMMERCIAL-IN-CONFIDENCE
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